Trust, Estates and Probate

Trust/Living Trust
What is the advantage of a Trust?
Property left through a trust or living trust does not go through probate court prior to reaching the beneficiary if the property was owned by the trust at the time of the decedent’s death. A trust can be made during the decedent’s lifetime (called an inter vivos trust) or it can be created according to the terms and conditions stated in the decedent’s will, which becomes effective upon his or her death (called a testamentary trust).

Estate Planning
What is included in an Estate?
The fair market value of the decedent’s, or deceased party’s property and interest at the time of death. This could include cash, real estate, trusts, annuities, business interest and other interests. This excludes property solely owned by a spouse or another and lifetime gifts, depending on their stage of completion.

*The property included in an estate does not necessarily equal the value used to evaluate estate tax.

Why are wills important?
No one wants to contemplate the possibility of his/her death. Should something happen to you, how will your assets be disposed? Without a current will, the court will decide what is to become of your assets according to what they feel, is best. Having a will allows you to control the distribution of your assets in the event of your death and eliminates potential arguments and hardships amongst your beneficiaries.

What are the components of a valid will?
To be valid, a will must be in written, typed or printed form, signed with your signature at the end of the document and witnessed by at least two others present at the time of your signing. If a will does not comply with these requirements, the court has discretion to grant, or not grant, probate, which could potentially invalidate your final wishes. It is important to meet with an attorney who specializes in this area.

What if I die without a will?
Dying without a will, or “intestate”, your estate is distributed to court-determined beneficiaries in accordance with the will of the court. Some typical examples of potential outcomes include:

If you die without a spouse or children, but are survived by your parents, your parents generally receive all of the assets of your estate.
If you die and are survived by a spouse, the whole of your estate will generally pass to your spouse.
If you die and are survived by a spouse and children, the estate will most likely be divided between your spouse and children, as determined by the courts. This could potentially burden your spouse who may have to sell a family home in order to pay out the shares to the children.
If you die without a spouse, children or parents, but are survived by brothers and sisters, then your estate will be divided equally amongst the siblings.
Additional reasons for having an updated will include:

protecting family owned businesses and a lifetime of assets
having a smooth transfer of assets in the event of your death
to secure your children’s future and nominate guardians (for underage children)
for those in a second marriage, a will provides the guidelines by which beneficiaries from prior and current relationships are divided – although a marriage will generally invalidate any will made prior to the date of marriage, a divorce does not automatically cancel a will.
What actions can be taken to transfer ownership of assets outside of probate?
Some process is needed to transfer legal title from the decedent’s own name to his or her Beneficiaries or heirs. Property that does not need to go through probate to transfer legal title includes property that passes automatically to someone else at the death of the decedent. Property that passes directly to others includes the following:

Real property (such as land and buildings) and personal property (such as bank accounts, vehicles, jewelry, and so on) owned as joint tenants passes to the surviving co-owners by operation of law without going through probate.
Benefits payable to named Beneficiaries, such as those from a life insurance policy or annuity bypass probate. Money from IRAs, Keoghs, and 401(k) accounts transfer automatically, outside probate, to the persons named as Beneficiaries. Bank accounts that are set up as payable-on-death accounts (POD for short) (also called an “in trust for” account or a “Totten Trust”) with a named Beneficiary also pass to that Beneficiary without probate.
Probabte Trust Law

What is Probate?
At death, your will goes through a process by which your will be determined to be your final wishes and a person or institution is appointed as administer of your estate, per your wishes. The probate consists of the gathering of assets, payment of debts and taxes of administration and distributing the assets amongst the beneficiaries in the will.

What is a Living Will?
A living will is an advanced statement regarding the preference for life sustaining procedures and treatments in the event one becomes incapacitated or terminally ill.

What is a Power of Attorney?
There are three types:

Nondurable – Takes affect immediately and remains in affect until it is revoked by the Principle or they become mentally incompetent or deceased. This is typically used for a specified purpose or transaction.
Durable – Allows one to continue to act on behalf of the Principle after they are mentally incompetent or physically incapable of making decisions. This power of attorney will remain in effect until the Principle revokes it or is deceased.
Springing – Is to be in effect at a future time in the event of disability or illness of the Principle. The power of attorney remains in effect until the Principle’s death or revocation by a court.

Copyrights

Copyright law protects original works of expression, such as written material, fine and graphic arts, music, photography, software, video and cinema, by preventing the work from being copied or commercially exploited without the permission of the copyright owner. Copyright protection may also be available for a trademark if it has artistic elements included within it as well. Most companies now have a website and the information you place on that website may be protected by copyright, as well as any advertising material you may utilize or software you develop. By registering these copyrightable works with the Copyright Office, you can enforce these rights if your works are misappropriated

How do I obtain copyrights?
Copyright vests with the original creator or author of the work, unless the work was a work-for-hire, in which case the hiring party is considered the author. The copyright can be registered with the copyright office at any time during the term of the copyright.

How do I obtain a registration of my copyright?
The U.S. Copyright office is a division of the Library of Congress, and administers and issues registration of copyrights to those whose applications that are entitled to a registration.

Am I required to place a copyright notice on any works to which I am claiming copyright?
The copyright notice consists of three elements, the copyright symbol ©, the year of first distribution to the public and the name of the copyright owner. While this notice is not required in order to claim infringement or damages, it is advisable that the notice be placed on any work to which a business or individual is claiming copyright.

What are the advantages provided by a copyright registration?
Current law does not require registration of the work with the U.S. Copyright Office. However, registering a work provides the following advantages: registration is required to file an infringement suit; also if an application for registration has been filed within three months of publication or before the infringement occurs, the owner has the right to receive statutory damages. These statutory damages range from $750 per infringement to $30,000 per infringement. If infringement is shown to be willful, the damages can be tripled. Additionally, certain costs and reasonable attorney’s fees may be recovered.

If the work is unregistered, the copyright holder must show actual damages incurred. These can be reimbursed and the infringer can be forced to disgorge any profits that may have been made through the infringement.

As a business owner, what types of works can receive copyright protection?
Business owners frequently have items which are protected through copyright. Some examples are advertisements and commercials, website content, trademarks with significant design elements and software developed by the company.

What is the duration of the term of a copyright?
Works created on or after January 1, 1978, is the life of the author plus 70 years. If the work is anonymous or pseudonymous or a work-for-hire, the term is 75 years from publication or 100 years from creation. If the work is a joint work, with no work-for-hire authorship, the term is the life of the last surviving author plus 70 years. At the end of the term, the work falls into the public domain.

What is “Fair Use”?
There are some situations where copyrighted material can be used, without infringing the author’s rights, known as fair use. There are four factors to be considered in determining fair use:

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
The nature of the copyrighted work:
The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
The effect of the accused use on the potential market for or value of the copyrighted work.
What are some examples of works that are not copyrightable?
Works that are not fixed in a tangible medium of expression. Trivial works without creative substance, i.e., words, names, titles, slogans and short phrases. Ideas, principles, concepts, plots, procedures, processes, systems and methods of operation (idea vs. expression dichotomy). While facts typically are not eligible for copyright proection, the expression of the facts may be copyrightable.

What are the two criteria for an infringement action?
Proof of ownership of the copyright and proof of copying by the infringer are the criteria needed for an action.

Recommended Web Sites
U.S. Copyright Office (www.copyright.gov) maintains a website which provides general information on copyright law and links to legal references. It also provides instructions on how to register and license a copyright as well as other information on copyright.

Corporate Litigation

KSC attorneys also work on a wide array of business transactions representing manufacturers, developers, and other institutional entities in various commercial settings, in addition to our banking practice. Our clients sell products and deal with property across the US and throughout the world and we provide solid guidance and clear communication when drafting contracts and other legal documents to help them accomplish their goals. When disputes arise in these dealings, KSC zealously works with their clients to reach a fair resolution, including encouraging and participating in several mediations—but sometimes that simply is not possible. When no reasonable solution can be achieved, our attorneys bring years of experience to the courtroom and have successfully litigated numerous commercial disputes, ranging from shareholder actions, supply contracts, leases, franchise disputes and non-compete agreements. The dedicated efforts of our attorneys create business opportunities from business disputes.

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